It seems once again that in the quest to get the 33rd America’s Cup Deed of Gift match ‘on the water’ there has been another hiccup.
The two parties were in session with two of the IJ’s appointed for the match, and also from the ‘Expert Panel’ that Justice Shirley Kornreich had put in place to get advice for her decision making process. It would seem on the surface that with this much firepower in place, that some sort of agreement on the match terms would be reached. But we can only dream, as seen over the last 2 1/2 years any sort of agreement, other than ‘accidentally’ as in the site of the Cup match being Valencia per the proposed settle orders submitted to Justice Cahn, which SNG/Alinghi/EB then contested as flawed, was as close to ‘mutual consent’ as we have seen.
With eight judgments ruled against SNG/Alinghi/EB, and only one appellate court ‘win’, it seems curious why this trustee and defender team would not relent and try to cut the best deal possible for a chance to ‘win it in the water and not the courts’. What drives this group to such an extreme is just beyond belief. Many BOR supporters, including myself, had hoped that with the late hour and the pressure to get things sorted in the short time remaining, that reason and agreement could be reached. Both boats are on-site, but SNG still plays a game of saying that they have not yet named their representative yacht. Unless there is a ‘January Surprise’ coming over the Alps, what other boat could SNG possibly show-up with, prepared to sail against the significantly tuned BOR90?
According to reports, either the members on-site had come to terms over the match, only to have the rug pulled-out "from Geneva", or BOR bailed and then submitted the CiC lawsuit before negotiations were completed and supposedly after agreeing to meet again the following day.
Who are we to believe?
>From the outside, due to the differential in time from Singapore to New York, it appears that the "from Geneva" pull-back makes sense, due to the fact that the meeting could have wrapped and there was still time to file the suit in NY before the end of the day. If after two days and no end in sight to reach signed agreement, after coming to terms in the room with those that apparently do not have the authority to make such agreements, as we have seen before in Sydney, then BOR filing a motion would seem to be the only option.
As in 1988, Justice Kornreich may tell the two to "go race" and then bring any legitimate arguments to her after the completion.
With all the judgments ruled-on so far in this saga, this would appear to be another nail in the planks of the Breach of Fiduciary Duty case that BOR has on file with the court.
Looking at the history of this contentious match, it would seem to be unreal to try and stand-up to the NY Supreme Court and GGYC over coming to terms to get this match under way and completed. SNG should defend their legitimate rights under the terms of the Deed of Gift, but not send representatives to a meeting that cannot agree and sign-off on the terms of the match. That would be called ‘dealing in bad faith’ in most parts of the world.
And it will not gain favor with Justice Kornreich and many America’s Cup enthusiasts everywhere.
Unless that is exactly what Ernesto Bertarelli wants. – HHN92